Reversed and Remanded; Rehearing Overruled; Corrected Majority Opinion on Rehearing After Remand of April 29, 2004 Withdrawn and Substituted with Corrected Majority Opinion on Rehearing After Remand filed July 1, 2004.
In The
Fourteenth Court of Appeals
____________
NO. 14-99-00811-CR
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JOHN WATTS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 15
Harris County, Texas
Trial Court Cause No. 99-08037
CORRECTED MAJORITY OPINION
ON REHEARING AFTER REMAND
Appellant, John Watts, was charged by information with two counts of water pollution. A jury subsequently returned a general verdict of guilty. On original submission, we affirmed the convictions. Watts v. State, 56 S.W.3d 694 (Tex. App.CHouston [14th Dist.] 2001), rev=d, 99 S.W.3d 604 (Tex. Crim. App. 2003). A central issue in the trial of that case was whether a drainage ditch constituted Awater in the state,@ and, thus, was protected from pollution by the Texas Water Code. See Tex. Water Code Ann. ' 7.145 (Vernon 2000). Relying upon the authority of American Plant Food Corp. v. State, 587 S.W.2d 679 (Tex. Crim. App. 1979), the trial court instructed the jury that a Adrainage ditch was one of the types of surface water the legislature sought to protect under the Water Code Act.@ We approved the trial court=s instruction.
The Texas Court of Criminal Appeals, however, held the instruction was improper. The court reasoned the trial judge erred by (1) taking judicial notice of the law in the jury=s presence and (2) commenting on the weight of the evidence. Watts v. State, 99 S.W.3d 604, 611B13 (Tex. Crim. App. 2003). The court then remanded the cause to this court to conduct a harm analysis.
Standard of Review
The essence of the error here is that by improperly taking judicial notice that a drainage ditch is Awater in the state,@ the trial court thereby commented on the weight of the evidence. A trial court improperly comments on the weight of the evidence if it makes a statement that implies approval of the State=s argument, that indicates any disbelief in the defense=s position, or that diminishes the credibility of the defense=s approach to its case. Hoang v. State, 997 S.W.2d 678, 681 (Tex. App.CTexarkana 1999, no pet.). Here, one of the contested issues before the jury was whether a drainage ditch, in which water flowed only intermittently, was Awater in the state.@
Although the trial court did not require the jury to find the drainage ditch was protected by the Texas Water Code, it did authorize the jury to accept this matter as a conclusive fact. Because appellant may have been deprived of his right to have a jury determine this issue, we will review the error under the standard for Aconstitutional error.@ See Tex. R. App. P. 44.2(a).[1] Where the appellate record in a criminal case reveals constitutional error, we must reverse the judgment of conviction unless we determine beyond a reasonable doubt that the error did not contribute to the conviction. Id.
Harm Analysis
To the jury, the language and conduct of the trial court have a special and peculiar weight. Devis v. State, 18 S.W.3d 777, 782 (Tex. App.CSan Antonio 2000, no pet.). In fact, jurors are prone to seize with alacrity upon any conduct or language of the trial judge which they may interpret as shedding light upon his or her view of the weight of the evidence, or the merits of the issues involved. Bachus v. State, 803 S.W.2d 402, 405 (Tex. App.CDallas 1991, pet. ref=d). Thus, in reviewing the possible prejudice to appellant, we will presume the jury accepted the trial court=s invitation to find as a conclusive fact that a drainage ditch is Awater in the state.@
Appellant was charged by information. The information appears to contain two paragraphs. Although they are not styled as such, these Aparagraphs@ are, in fact, separate counts because each alleges a different offense.
The first count purports to allege an offense under Section 7.145(a) of the Texas Water Code. Tex. Water Code Ann. ' 7.145(a) (Vernon 2000). The second count alleges an offense under Section 7.146(a) of the Texas Water Code. Tex. Water Code Ann. ' 7.146(a) (Vernon 2000). Each offense Arequires proof of a fact which the other does not.@ See Blockburger v. United States, 284 U.S. 299, 304 (1932) (setting forth the test for distinguishing between the same or different offenses). In reviewing the statutory elements applicable to the facts of this case, a person is strictly liable under Section 7.145 and commits an offense if he: (1) intentionally or knowingly, (2) discharges or allows the discharge, (2) of a waste or pollutant, (3) into or adjacent to Awater in the state,@ (4) that causes or threatens to cause water pollution, and (5) such discharge is not in strict compliance with all required permits or with a valid and currently effective order issued or rule adopted by the appropriate regulatory agency. A person commits an offense under Section 7.146 if he: (a) intentionally or knowingly, (2) discharges or allows the discharge, (3) of a waste or pollutant, (4) from a point source, (5) in violation of Chapter 26 of the Texas Water Code, i.e., discharges sewage into or adjacent to any Awater in the state.@
When multiple offenses are committed during a single criminal episode, they may be joined in a single charging instrument with each offense alleged in a separate count. Tex. Code Crim. Proc. Ann. art. 21.24(a) (Vernon 1989). Because a statute sometimes provides for various manner and means of committing an offense, each count may contain as many separate paragraphs charging alternate manner and means of committing the offense as necessary. Tex. Code Crim. Proc. Ann. art. 21.24(b) (Vernon 1989). Thus, as a general rule, a Acount@ is used to charge the offense itself and a Aparagraph@ is that portion of a count which alleges the method of committing the offense. Owens v. State, 96 S.W.3d 668, 673 (Tex. App.CAustin 2003, no pet.).
It is permissible to join two or more offenses in the same charging instrument, and the State is not required to elect between counts. Thacker v. State, 999 S.W.2d 56, 63 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d). The jury, however, must be instructed to return a finding of guilty or not guilty in a separate verdict as to each count submitted to them. Tex. Code Crim. Proc. Ann. art. 37.07, ' 1(c) (Vernon 1981). Here, the counts were not separately submitted to the jury; rather, the jury returned a single verdict which declared: AWe, the Jury, find the Defendant >Guilty.=@ Appellant did not object to the charge and has not raised the error on appeal. Under these circumstances, the general verdict operates as a conviction of all counts. Lovejoy v. State, 48 S.W. 520, 522 (Tex. Crim. App. 1898). Moreover, if necessary, we are free to assign the verdict to any count supported by the evidence. Smothermon v. State, 383 S.W.2d 929, 931 (Tex. Crim. App. 1964). Thus, while the trial court=s instruction regarding the drainage ditch had direct applicability only to the first count of the information (which was the only count alleging a drainage ditch to be Awater in the state@), we must examine the effect of the charge upon the general verdict.
The first count alleges appellant discharged sewage into or Aadjacent@ to a drainage ditch. Although the State offered some evidence that appellant=s sewage could potentially contaminate the drainage ditch if there was sufficient rainfall to carry it into the ditch, the State=s primary theory of prosecution appears to have been that appellant unlawfully discharged sewage Aadjacent@ to the drainage ditch. The record, for example, shows the discharge of sewage was 140 to 150 feet from the county drainage ditch. A small trench had been constructed on appellant=s property to facilitate drainage directly into the county drainage ditch. However, due to the distance between the discharge and the ditch, no sewage was observed draining into the ditch. In fact, it was conceded by the State=s witnesses that during hot, dry weather, the sewage did not contaminate the ditch.[2] However, the State also presented testimony that even a Alittle@ rain could potentially wash sewage from appellant=s property into the ditch. From there, the polluted water could enter Coal Creek, which, in turn, emptied into White Oak Bayou, which, in turn, eventually emptied into Buffalo Bayou and Galveston Bay. Finally, appellant, himself, testified that surface water runoff from his property flowed into the ditch.
However, even if the jurors were permitted to convict appellant under the first count for discharging sewage adjacent to the drainage ditch, no conviction was possible unless they also found the ditch to be Awater in the state.@ Historically, the term Awater@ has been used in many different contexts in Texas jurisprudence. Distinctions have been drawn between navigable and non-navigable waters,[3] surface and underground waters,[4] waters in a natural watercourse and those that are diffused on the surface.[5] Many of these distinctions were recognized by courts while either attempting to adjudicate ownership of water or determining riparian rights regarding its use. It was well established early in the twentieth century that waters which Aooze through the soil@ (percolating ground water) and waters which Adiffuse or squander themselves over the surface, following no definite course@ (diffused surface water) belong to the owner of the land. Hoefs v. Short, 190 S.W. 802, 806 (Tex. 1916). Water in a watercourse, however, is the property of the State, held in trust for the public. Domel v. City of Georgetown, 6 S.W.3d 349, 362 (Tex. App.CAustin 1999, pet. denied). Diffused surface water (belonging to the land owner) becomes a natural watercourse (belonging to the State) at the point where it begins to form a reasonably well-defined channel, with bed and banks, or sides and current, although the stream itself may be very small and the water may not flow continuously. International-Great N. R.R. Co. v. Reagan, 12 Tex. 233, 49 S.W.2d 414, 418B19 (1932). However, if the land owner can capture or impound Acasual and vagrant@ waters before they coalesce into a natural gully, stream, or other watercourse, they remain his property. Hoefs, 190 S.W. at 806.
With respect to pollution, however, the legislature clearly sought to abolish these common law distinctions between private and public waters. It is an offense to pollute any Awater in the state.@ Tex. Water Code Ann. '' 7.145(a) & 26.121(a)(1) (Vernon 2000). AWater in the state@ is defined as:
. . . groundwater, percolating or otherwise, lakes, bays, ponds, impounding reservoirs, springs, rivers, streams, creeks, estuaries, wetlands, marshes, inlets, canals, the Gulf of Mexico, inside the territorial limits of the state, and all other bodies of surface water, natural or artificial, inland or coastal, fresh or salt, navigable or nonnavigable, and including the beds and banks of all watercourses and bodies of surface water, that are wholly or partially inside or bordering the state or inside the jurisdiction of the state.
Tex. Water Code Ann. ' 26.001(5) (Vernon Supp. 2004). By this broad definition the legislature has clearly sought to include all water found within the environmentCwhether impounded or free-flowing, above or beneath the surface of the ground, in or out of a watercourse, salt or fresh, or publicly or privately owned. In short, under the definition provided by the legislature, it is difficult to envision any liquid water in the environment, apart from free-falling rain drops, that is not Awater in the state.@
However, as the Court of Criminal Appeals specifically observed, the trial court did not instruct the jury that water in a drainage ditch is Awater in the state,@ but rather that the ditch itself is Awater in the state.@ Appellant contends that such an instruction is nonsensical, but we are persuaded the trial judge=s instruction, although inappropriate, was entirely accurate. The definition of Awater in the state@ includes not only liquid water, but the beds and banks of all watercourses. The term Awatercourse@ is not defined by the Water Code; thus, it must be given the meaning it enjoys in ordinary usage. A Awatercourse@ is any Abody of water flowing in a reasonably definite channel with bed and banks.@ Black=s Law Dictionary 1585 (7th ed. 1999). It may be either artificial, i.e., man-made, or natural. Id. at 1586. Here, the legislature has included in its definition of Awater in the state@ the beds and banks of all watercourses (as distinguished from merely natural watercourses). Compare and contrast Tex. Water Code Ann. ' 26.001(5) (specifying Aall watercourses) with Tex. Water Code Ann. ' 36.001(8)(E) (Vernon Supp. 2004) (specifying only Anatural watercourses@) and Tex. Loc. Gov=t Code Ann. ' 402.044(3) (Vernon Supp. 2004) (specifying Anatural or artificial watercourses@).
Moreover, the fact that a watercourse contains water only intermittently does not alter its character as a watercourse. The current of water in a watercourse need not be continuous and the watercourse may be dry for long periods of time. Hoefs v. Short, 273 S.W. 785, 787 (Tex. 1925); Domel, 6 S.W.3d at 362. Accordingly, a drainage ditch retains its character as a Awatercourse@ during flood or drought, whether wet or dry. Because the bed of a watercourse may be polluted without regard to whether it currently contains liquid water, the trial court=s instruction was a correct statement of the law.
However, in light of the Court of Criminal Appeal=s opinion, it appears the trial court=s error was not so much in giving the jury an incorrect statement of the law, as it was in giving any statement identifying or defining Awater in the state@ by means other than the statutory definition propounded by the legislature. Thus, the main thrust of the court=s opinion seems to be the notion that a trial court should not instruct the jury with regard to Ajudicial decisions or any statements that an appellate court has held that proof of >X= fact fulfills >Y= legal requirement.@ Watts, 99 S.W.3d at 611. Therefore, notwithstanding the accuracy of the trial court=s instruction, it should not have been given to the jury. Thus, we must now decide whether an instruction, although accurate in its content, can nevertheless be harmful to the defendant.
In his closing argument to the jury, appellant=s counsel attempted to persuade jurors that a drainage ditch was not Awater in the state@ because the words Adrainage ditch@ do not appear in the statutory definition of Awater in the state.@[6] Counsel=s argument had no legal merit, but statutes are not always drafted so as to Aexclude every misinterpretation capable of occurring to intelligence fired with a desire to pervert.@ See Paraiso v. United States, 207 U.S. 368, 372 (1907). While we are persuaded that a drainage ditch is, as a matter of law, Awater in the state,@ we also recognize that without the benefit of the trial court=s instruction, it is conceivable appellant=s counsel might have induced the jury to believe otherwise. Accordingly, we cannot say beyond a reasonable doubt that the trial court=s instruction did not contribute to appellant=s conviction under the first count of the information.
With respect to the second count, the State did not allege a drainage ditch, i.e., it did not identify the Awater in the state.@ Thus, the jury was authorized to convict appellant under the second count if it found he discharged sewage from a point source into or adjacent to any Awater in the state.@[7] The evidence indicates several watercourses were nearby and subject to pollution by appellant=s sewage if sufficient rainfall carried it into the ditch, and hence to Coal Creek, White Oak Bayou, Buffalo Bayou, etc. However, the State=s theory of prosecution, as evidenced by the record, was that an offense was committed when the appellant dumped sewage adjacent to the drainage ditch and, thus, adjacent to Awater in the state.@ Accordingly, the second count fairs no better than the firstCappellant was potentially prejudiced by the trial court=s instruction. While it is unseemly to predicate reversible error upon an accurate statement of the law, the Court of Criminal Appeals clearly suggests by its opinion that an appellant may be harmed by such an instruction.
Because we cannot find beyond a reasonable doubt that the instruction did not contribute to the conviction, the judgment of the trial court is reversed and the cause is remanded for a new trial.
/s/ J. Harvey Hudson
Justice
Judgment rendered and Corrected Majority and Concurring Opinions on Rehearing after Remand filed July 1, 2004.
Panel consists of Justices Yates, Hudson, and Frost (Frost, J., concurring).
Publish C Tex. R. App. P. 47.2(b).
[1] We do not mean to suggest that every comment on the weight of the evidence constitutes Aconstitutional error.@ A Aconstitutional error@ is an error that directly offends the United States Constitution or the Texas Constitution without regard to any statute or rule that might also apply. Alford v. State, 22 S.W.3d 669, 673 (Tex. App.CFort Worth 2000, no pet.). Whether a comment on the weight of the evidence constitutes Aconstitutional error@ depends upon the context in which it is made. For example, where an inadvertent comment is made by the trial judge in the presence of the jury that could be interpreted to suggest the trial judge holds an opinion as to some factual issue in the case, the error may prejudice the defendant, but it would not necessarily have the effect of deciding the issue or removing it from the jury=s consideration. However, if the comment is improperly inserted in the court=s charge, it may remove some element or fact issue from the jury=s consideration and thereby deprive the defendant of a jury trial on the disputed element or fact issue. Only in the later case would the erroneous comment constitute constitutional error.
[2] The record also contains expert testimony that the polluting effect of sewage, discharged on the ground, dissipates over a period of 48 hours due to bacterial activity. Again, therefore, the only danger of polluting state water occurred during times of rainfall when the runoff carried fresh sewage into the drainage ditch.
[3] Navigable streams, for example, are held by the State in trust for the benefit of the public. Guadalupe-Blanco River Auth. v. Pitonyak, 84 S.W.3d 326, 340 (Tex. App.CCorpus Christi 2002, no pet.). In fact, the State holds title to all navigable riverbeds. Brainard v. State, 12 S.W.3d 6, 31 n.3 (Tex. 1999).
[4] The distinction between surface and underground water is important in determining ownership of the water. Texas courts have also long considered water as part of the soil itself, and ownership of underground water has historically come with ownership of the surface. Dyegard Land Partnership v. Hoover, 39 S.W.3d 300, 311 (Tex. App.CFort Worth 2001, no pet.)
[5] Damages stemming from the diversion of water are sometimes determined by whether the water at issue was diffused surface water or water in a natural water course. Dalon v. City of DeSoto, 852 S.W.2d 530, 538B39 (Tex. App.CDallas 1992, writ denied).
[6] This is the same argument advanced in the concurring opinion. Justice Frost, for example, relies heavily upon the fact that the word Aditch@ is used by the Legislature in describing a Apoint source,@ but is not used in defining a Awater in the state.@ Because the Legislature has used the word Aditch@ in other statutes, but has failed to use it in defining a Awater in the state,@ the concurring opinion suggests this is some evidence the Legislature did not intend for ditches to be watercourses.
In defining a Apoint source,@ the Legislature attempted merely to describe every conceivable place or device through which pollution might be discharged into water. Thus, a Apoint source@ is Aany discernible, confined and discrete conveyance . . . from which pollutants or wastes are or may be discharged into or adjacent to any water in the state.@ Tex. Water Code Ann. ' 26.001(21) (Vernon Supp. 2004). Examples provided by the Legislature include pipes, ditches, channels, tunnels, conduits, wells, discrete fissures, containers, rolling stock, animal feeding operations, vessels, etc. Id. The inclusion of ditches as possible point sources in no way, however, implies that ditches are not also watercourses.
A Adrain,@ for example, may sometimes be a Aditch.@ See Lee v. Grupe, 223 S.W.2d 548, 552 (Tex. Civ. App.CTexarkana 1949, no writ) (holding that Adrain@ is synonymous with Aditch@); Black=s Law Dictionary 509 (7th ed. 1999) (stating that a drain is a Aconduit for draining liquid, as a ditch or pipe.@); Webster=s Third New International Dictionary 685 (1993) (defining Adrain@ as Aan artificial channel by means of which liquid or other matter is drained or carried off: SEWER, SINK, TRENCH . . . a watercourse esp. when narrow@). As Aan artificial conduit or channel designed to carry off water, sewage, filth, refuse, etc.@ a Adrain@ fits the definition of a Apoint source.@ See Peterson v. Barron, 401 S.W.2d 680, 686 (Tex. Civ. App.CDallas 1966). Yet, a Adrain@ may also be a watercourse. Id.
A ditch is simply Aan artificial stream.@ Lewis v. San Antonio River Authority, 343 S.W.2d 475, 482 (Tex. Civ. App.CSan Antonio 1960), aff=d, 363 S.W.2d 444 (Tex. 1962). As such, a ditch is an artificial watercourse to which, under certain circumstances, even riparian rights may attach. Id. at 482B83. Thus, the term Awatercourse@ is broad enough to include Aartificial watercourses, whether employed for traffic, for irrigation, or for drainage.@ Chicago, R.I. & G. Ry. Co. v. Tarrant County Water Control & Improvement Dist. No. 1, 73 S.W.2d 55, 70 (Tex. 1934). Accordingly, a dredged channel is a Aman-made watercourse.@ See Selkirk Island Corp. v. Standley, 683 S.W.2d 793, 794 (Tex. App.CCorpus Christi 1984, writ ref=d n.r.e.) (holding that where Colorado River runs through a dredged channel it remains a watercourse even if man-made).
Justice Frost also contends a watercourse must, by definition, contain water. The argument, while cogent, ignores decades of contrary jurisprudence. A watercourse may, in normal times, contain very little, if any, water. Lower Colorado River Authority v. Texas Dept. of Water Resources, 638 S.W.2d 557, 581 (Tex. App.CAustin 1982), rev=d on other grounds, 689 S.W.2d 873 (Tex. 1984). The only prerequisite for a watercourse is that it have a reasonably well defined channel, with bed and banks, or sides and current, although the stream itself may be very small and the water may not flow continuously. International-Great Norther R. Co., 49 S.W.2d at 418. Thus, the Leon River is a watercourse even if it does not flow for six or eight months at a time. Texas Co. v. Burkett, 296 S.W. 273, 275‑76 (Tex. 1927). Likewise, Barilla Creek, a dry bed in Pecos County that contains water four to seven times annually for a short time after a rainfall, is, nevertheless, a watercourse. See State Bd. of Water Engineers v. Slaughter, 382 S.W.2d 111, 113 (Tex. Civ. App.CSan Antonio 1964, writ ref=d n.r.e.). Even when water is so intermittent and of such minimal quantity as to eliminate the watercourse as a potential source of irrigation, and thus free of riparian rights, it remains a watercourse. See McCurdy v. Morgan, 265 S.W.2d 269, 271 (Tex. Civ. App.CSan Antonio 1954, writ ref=d). Accordingly, Chiltipin Creek, a dry creek in San Patricio County that never contains water except during periods of heavy rain is still a watercourse. Id.
If the concurring opinion is correct, a person could dump noxious substances into a dry streambed or ditch without violating the statutes at issue even if the bed was shown to have water in it the day before and the day after the dumping of the pollution. Surely, the Legislature did not intend a construction so at odds with public policy.
[7] AAdjacent@ is not defined by the Water Code. In common usage, the term means Anot distant or far off,@ it was Anearby but not touching.@ Webster=s Third New International Dictionary 26 (1993).